Kathleen S. Reid v. Jeffrey B. Geno, DDS

Opinion issued November 24, 2004. In The Court of Appeals For The First District of Texas NO. 01-03-01005-CV KATHLEEN S. REID, Appellant V. JEFFREY B. GENO, DDS, Appellee On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 02-CV-0807 MEMORANDUM OPINION Appellant, Kathleen S. Reid, challenges the trial court’s order dismissing her dental malpractice claim against appellee, Jeffrey B. Geno, D.D.S., because of her failure to timely file an expert report in compliance with the former Medical Liability and Insurance Improvement Act (“the Act”). In two issues, Reid contends that the trial court erred by (1) dismissing her suit and (2) refusing to grant her second request for an extension of time to file an amended report. We affirm. Factual and Procedural Background Reid was Dr. Geno’s patient from August 1982 until June 29, 2000. During the course of Reid’s treatment, Dr. Geno installed a number of crowns over Reid’s existing teeth. On July 8, 2002, Reid sued Dr. Geno for dental malpractice alleging that he negligently constructed and installed her crowns. Reid further alleged that, as a result of Dr. Geno’s negligent conduct, her mouth had to be completely reconstructed with dental transplant surgery. Pursuant to former section 13.01(d) of the Act, Reid was required to file an expert report in support of her claim by January 4, 2003. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2003). Reid failed to file any report by this deadline. On May 5, 2003, pursuant to former section 13.01 (g), Reid filed a motion to extend the deadline to file the expert report, and the trial court granted her motion. Three days before the last day of the requested extension, Reid filed the expert report and curriculum vitae of Dr. Allan Firestein. On July 18, 2003, Dr. Geno moved to dismiss Reid’s petition with prejudice for failure to file an expert report in compliance with subsection 13.01(d) of the Act. Specifically, Dr. Geno argued that Dr. Firestein’s expert report did not (1) comply with the minimum requirements of an expert report set forth in former subsection 13.01(r)(6) of the Act and (2) did not represent a good faith effort to comply with these requirements. Among other things, the motion asserted that the report failed to adequately set forth the applicable standard of care or how Dr. Geno deviated from that standard. Almost one month after the motion to dismiss had been filed, Reid filed a response to Dr. Geno’s motion to dismiss. The response included a second motion for an extension of time to file an amended report pursuant to former subsection 13.01(g) of the Act with an amended expert report from Dr. Firestein attached. Following a hearing, the trial court denied Reid’s second motion to extend time and granted Dr. Geno’s motion to dismiss Reid’s petition with prejudice. Standard of ReviewWe review a trial court’s decision to dismiss a health-care liability claim under section 13.01 of the Act using an abuse-of-discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Powers v. Mem’l Hermann Hosp. Sys., 81 S.W.3d 463, 465 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Powers, 81 S.W.3d at 465. Moreover, when reviewing a matter committed to the trial court’s discretion, we may not substitute our own judgment for the trial court’s judgment. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). “Good Faith” Effort To Comply with the Act In her first point of error, Reid asserts that, because her expert reports constituted a good-faith effort to comply with requirements of the Act, the trial court erred in dismissing her claims against Dr. Geno. We disagree. All health-care liability claims must comply with subsection 13.01(d) of the Act. Former subsection 13.01(d) requires that a plaintiff asserting a health-care liability claim must, not later than 180 days after filing suit, either: (1) furnish an expert report, with supporting curriculum vitae, to counsel for each defending physician or health-care provider or (2) voluntarily nonsuit the claim. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d)(1-2) (Vernon Supp. 2003). Former subsection 13.01(r)(6) defines “expert report” as a written report that provides a fair summary of the expert’s opinions: (1)regarding applicable standards of care, (2)the manner in which the care rendered failed to meet the standards, and (3)the causal relationship between that failure and the injury, harm, or damages claimed. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (Vernon Supp. 2003). If a plaintiff fails to file a report in compliance with this definition, a defendant may challenge the adequacy of the report in a motion to dismiss, and the trial court must (1) dismiss the claim against that defendant with prejudice, (2) award costs and attorney’s fees to that defendant, and (3) require that any bond filed under former section 13.01 of the Act be forfeited to pay that award. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(e)(1)-(3) (Vernon Supp. 2003); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). In adjudicating a defendant’s motion to dismiss, the dispositive inquiry is whether the report represents a good-faith effort to comply with the statutory definition of “expert report” in former subsection 13.01(r)(6). See Palacios, 46 S.W.3d at 878. The only information relevant to this inquiry lies within the four corners of the report. Strom, 110 S.W.3d at 221. The trial court may not look beyond the report in determining compliance with the statute. Id. Although the report need not marshal all the plaintiff’s proof, it must include the expert’s opinion on each of the elements of a conforming report as defined by former subsection 13.01(r)(6). Id. Specifically, the expert report must include the standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (Vernon Supp. 2003); Palacios, 46 S.W.3d at 878. In complying with the definition of former subsection 13.01 (r)(6), the report must: (1) inform the defendant of the specific conduct called into question by the plaintiff’s claims and (2) provide a basis from which the trial court may conclude the claims have merit. Palacios, 46 S.W.3d at 879. A report that merely states the expert’s conclusions about the standard of care, breach, and causation falls short of accomplishing these two purposes. Id. Moreover, when the expert report contains conclusory statements that do not alert the trial court or the defendant of the conduct complained of, it is not an abuse of discretion for the trial court to conclude that the report does not represent a good-faith effort to provide a fair summary of the standard of care and how it was breached and for the trial court to dismiss the action as a sanction. Id. at 880. In this case, Reid asserts that both of Dr. Firestein’s reports, one filed on June 6, 2003 and the other filed on August 14, 2003, represent a good-faith effort to comply with the minimum requirements of an expert report set forth in former subsection 13.01(r)(6). However, because the August 14, 2003 report was filed after the deadline for filing the report and was not recognized by the trial court, we will only consider the June 6, 2003 report. In support of her argument, Reid relies on the following excerpts from Dr. Firestein’s June 6, 2003 report: There appears to be the beginning of caries under the crowns. The presence of caries under the crowns would indicate that the crowns did not fit properly. The dental treatment that was done is slowly breaking down. This is shown by the need for continuing care required over the years and by the loss of teeth. The records indicate that she has had extensive dental care over the years that was performed by Dr. Geno, which was beneath the standard of care related to the construction and placement of crowns. She is undergoing reconstruction of her mouth. The requirement for the construction of her mouth is brought about by the failure of the crowns that were previously placed. The crowns were improperly made and caries developed under them which eventually caused her to loose the teeth. Reid asserts that these excerpts detail the deficient dental work that was performed by Dr. Geno, which was below the standard of care related to the construction and installation of crowns. She further contends that the June 6, 2003 report established a good-faith effort because it informed Dr. Geno of the specific conduct Reid has called into question. However, while Dr. Firestein mentioned that he believed that Dr. Geno deviated from the standard of care, he did not specifically identify the applicable standard of care–what an ordinarily prudent dentist would have done under the same or similar circumstances–and failed to explain what that standard required for Reid’s dental care. See Palacios, 46 S.W.3d at 880. Additionally, Dr. Firestein did not explain what Dr. Geno should have done differently, but rather provided a series of conclusions and opinions about what caused Reid’s injuries. See id. Accordingly, we hold that the trial court did not abuse its discretion in dismissing Reid’s case for failure to comply with the requirements of the Act. We overrule Reid’s first point of error. Second Motion to Extend In her second point of error, Reid contends that, pursuant to section 13.01 (g) of the Act, the trial court erred by refusing to grant her second request for extension of time to file an amended report. We disagree. Grace Period Former section 13.01(g) provides a possible grace period to the deadline for filing the requisite expert reports. This section applies to a claimant who has actually filed a report but the contents of the report fail to comply with the requirements of the Act. See Walker v. Gutierrez, 111 S.W.3d 56, 64-65 (Tex. 2003). Former section 13.01(g) requires that the trial court grant the claimant a 30-day grace period to timely file the requisite report if the failure to timely file was “not intentional . . . or the result of an accident or mistake.” Id. at 62-63. This “accident or mistake” standard is the same standard that governs setting aside a default judgment or reinstating a case dismissed for want of prosecution. Id. (citing Bank One Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992) (default judgment) and Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (dismissal for want of prosecution)). Former section 13.01(g) stated: Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (Vernon Supp. 2003) (emphasis added). Because former section 13.01(g) applies when a party has failed to comply with the deadline established by subsection (d), the failure to grant a grace period will result in the dismissal of the case as a sanction pursuant to section 13.01(e). See Walker, 111 S.W.3d at 62. In determining whether the failure to timely file was not intentional or was the result of an accident or mistake, we must look to the knowledge and acts of the claimant, as demonstrated by the record. Id. at 64. If the record establishes that the claimant’s assertions supporting a mistake of law are not controverted, the claimant will satisfy her burden, provided, however, that the claimant sets forth facts that, if true, negate intentional or consciously-indifferent conduct. Id. The plaintiff bears the burden of supporting her claim of accident or mistake with evidence. See Powers, 81 S.W.3d at 466. Accordingly, we now address Reid’s evidence of accident or mistake. Evidence of Accident or Mistake In her response to Dr. Geno’s motion to dismiss, Reid asserted that she was entitled to a second 30-day grace period because her failure to comply was the result of an accident or mistake. However, beyond the assertion contained in her response, there is nothing in the record establishing that Reid offered the trial court any evidence to show that the amended expert report was filed as a result of an accident or mistake. The appellate record does not include a transcript of the testimony at the hearing. Reid’s attorney filed an affidavit with the response, however the affidavit does not contain evidence of accident or mistake. The response itself cannot be considered as evidence of accident or mistake, even though it is verified. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Reid has the burden to present a record on appeal that shows the error about which she complains. Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Without a reporter’s record, we will indulge all presumptions in favor of the trial court’s findings and the judgment. Univ. of Houston-Clear Lake v. Marsh, 981 S.W.2d 912, 916 (Tex. App.—Houston [1st Dist.] 1998, no pet.). We hold that Reid has failed to meet her burden of showing that the existing record of this case establishes that the trial court abused its discretion by refusing to grant her a second 30-day grace period. We overrule Reid’s second point of error. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Nuchia, Hanks, and Higley.